kansas hendricks argued december decided june kansas sexually violent predator act establishes procedures civil commitment persons due mental abnormality personality disorder likely engage predatory acts sexual violence kansas filed petition act state commit respondent cross petitioner hendricks long history sexually molesting children scheduled release prison reserved ruling hendricks challenge act constitutionality granted request jury trial hendricks testified agreed state physician diagnosis suffers pedophilia cured continues harbor sexual desires children control gets stressed jury determined sexually violent predator finding pedophilia qualifies mental abnormality act ordered committed appeal state invalidated act ground precommitment condition mental abnormality satisfy perceived substantive due process requirement involuntary civil commitment must predicated mental illness finding address hendricks ex double jeopardy claims held act definition mental abnormality satisfies substantive due process requirements individual constitutionally protected liberty interest avoiding physical restraint may overridden even civil context jacobson massachusetts consistently upheld involuntary commitment statutes detain people unable control behavior thereby pose danger public health safety provided confinement takes place pursuant proper procedures evidentiary standards foucha louisiana act unambiguously requires precommitment finding dangerousness either one self others links finding determination person suffers mental abnormality personality disorder generally sustained commitment statute couples proof dangerousness proof additional factor mental illness mental abnormality see heller doe additional requirements serve limit confinement suffer volitional impairment rendering dangerous beyond control act sets forth comparable criteria precommitment requirement mental abnormality personality disorder contrary hendricks argument never required adopt particular nomenclature drafting civil commitment statutes leaves task defining terms medical nature legal significance cf jones legislature therefore required use specific term mental illness free adopt similar term pp act violate constitution double jeopardy prohibition ban ex lawmaking pp act establish criminal proceedings involuntary confinement punishment categorization particular proceeding civil criminal question statutory construction allen illinois nothing face act suggests kansas legislature sought create anything civil commitment scheme manifest intent rejected hendricks provides clearest proof scheme punitive purpose effect negate kansas intention deem civil ward failed satisfy heavy burden commitment act implicate either two primary objectives criminal punishment retribution deterrence purpose retributive affix culpability prior criminal conduct uses conduct solely evidentiary purposes make criminal conviction prerequisite commitment lacks scienter requirement important element distinguishing criminal civil statutes act said act deterrent since persons mental abnormality personality disorder unlikely deterred threat confinement conditions surroundingconfinement essentially conditions civilly committed patient suggest punitive purpose although commitment scheme involves affirmative restraint restraint dangerously mentally ill historically regarded legitimate nonpunitive objective cf salerno confinement potentially indefinite duration linked punitive objective purpose holding person mental abnormality longer causes threat others thus permitted immediate release upon showing longer dangerous longest detained pursuant single judicial proceeding one year state use procedural safeguards applicable criminal trials turn proceedings criminal prosecutions allen supra finally act necessarily punitive fails offer treatment treatment condition possible treatment though possible merely ancillary rather overriding state concern conclusion act nonpunitive removes essential prerequisite hendricks double jeopardy ex claims pp hendricks confinement amount second prosecution punishment offense convicted act civil nature commitment proceedings constitute second prosecution cf jones supra commitment tantamount punishment detention violate double jeopardy clause even though follows prison term baxstrom herold hendricks argument even act survives multiple punishments test fails elements test blockburger rejected since test apply outside successive prosecution context pp hendricks ex claim similarly flawed ex clause pertains exclusively penal statutes california dept corrections morales since act punishment application raise ex concerns moreover act clearly retroactive effect criminalize conduct legal enactment deprive hendricks defense available time crimes pp reversed thomas delivered opinion rehnquist scalia kennedy joined kennedy filed concurring opinion breyer filed dissenting opinion stevens souter joined ginsburg joined parts ii iii notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions wash ington typographical formal errors order corrections may made preliminary print goes press nos kansas petitioner leroy hendricks leroy hendricks petitioner writs certiorari kansas june justice thomas delivered opinion kansas enacted sexually violent predator act establishes procedures civil commitment persons due mental abnormality personality disorder likely engage predatory acts sexual violence stat ann et seq state invoked act first time commit leroy hendricks inmate long history sexually molesting children scheduled release prison shortly act became law hendricks challenged commitment inter alia substantive due process double jeopardy ex grounds kansas invalidated act holding condition mental abnormality satisfy perceived substantive due process requirement involuntary civil commitment must predicated finding mental illness hendricks state kansas petitioned certiorari hendricks subsequently filed cross petition reasserted federal double jeopardy ex claims granted certiorari petition cross petition reverse judgment kansas legislature enacted sexually violent predator act act grapple problem managing repeat sexual offenders although kansas already statute addressing involuntary commitment defined mentally ill legislature determined existing civil commitment procedures inadequate confront risks presented sexually violent predators act preamble legislature explained small extremely dangerous group sexually violent predators exist mental disease defect renders appropriate involuntary treatment pursuant general involuntary civil commitment statute contrast persons appropriate civil commitment general involuntary civil commitment statute sexually violent predators generally anti social personality features unamenable existing mental illness treatment modalities features render likely engage insexually violent behavior legislature finds sexually violent predators likelihood engaging repeat acts predatory sexual violence high existing involuntary commitment procedure inadequate address risk sexually violent predators pose society legislature finds prognosis rehabilitating sexually violent predators prison setting poor treatment needs population long term treatment modalities population different traditional treatment modalities people appropriate commitment general involuntary civil commitment statute stat ann person convicted charged sexually violent offense suffers mental abnormality personality disorder makes person likely engage predatory acts sexual violence originally structured act civil commitment procedures pertained presently confined person like hendricks convicted sexually violent offense scheduled release person charged sexually violent offense found incompetent stand trial person found guilty reason insanity sexually violent offense person found guilty sexually violent offense mental disease defect initial version act applied currently confined person hendricks designed initiate specific series procedures custodial agency required notify local prosecutor days anticipated release person might met act criteria prosecutor obligated within days decide whether file petition state seeking person involuntary commitment petition filed determine whether probable cause existed support finding person sexually violent predator thus eligible civil commitment upon determination transfer individual secure facility professional evaluation occur evaluation trial held determine beyond reasonable doubt whether individual sexually violent predator determination made person transferred custody secretary social rehabilitation services secretary control care treatment time person mental abnormality personality disorder changed person safe large addition placing burden proof upon state act afforded individual number procedural safeguards case indigent person state required provide public expense assistance counsel examination mental health care professionals individual also received right present cross examine witnesses opportunity review documentary evidence presented state individual confined act required involuntary detention commitment shall conform constitutional requirements care treatment confined persons afforded three different avenues review first committing obligated conduct annual review determine whether continued detention warranted second secretary permitted time decide confined individual condition changed release appropriate authorize person petition release finally even without secretary permission confined person time file release petition found state longer satisfy burden initial commitment standard individual freed confinement hendricks convicted taking indecent liberties two old boys serving nearly years sentence slated release halfway house shortly scheduled release however state filed petition state seeking hendricks civil confinement sexually violent predator august hendricks appeared counsel moved dismiss petition grounds act violated various federal constitutional provisions although reserved ruling act constitutionality concluded probable cause support finding hendricks sexually violent predator therefore ordered evaluated larned state security hospital hendricks subsequently requested jury trial determine whether qualified sexually violent predator trial hendricks testimony revealed chilling history repeated child sexual molestation abuse beginning exposed genitals two young girls time pleaded guilty indecent exposure convicted lewdness involving young girl received brief jail sentence molested two young boys worked carnival serving two years prison offense paroled rearrested molesting old girl attempts made treat sexual deviance considered safe large discharged state psychiatric hospital app shortly thereafter however hendricks sexually assaulted another young boy girl performed oral sex old girl fondled old boy imprisoned refused participate sex offender treatment program thus remained incarcerated parole diagnosed pedophile hendricks entered abandoned treatment program testified despite received professional help pedophilia continued harbor sexual desires children indeed soon parole hendricks began abuse stepdaughter stepson forced children engage sexual activity period approximately four years noted hendricks convicted taking indecent liberties two adolescent boys attempted fondle result conviction imprisoned serving sentence reached conditional release date september hendricks admitted repeatedly abusedchildren whenever confined explained get stressed ca control urge molest children although hendricks recognized behavior harms children hoped sexually molest children stated sure way keep sexually abusing children future die hendricks readily agreed state physician diagnosis suffers pedophilia cured condition indeed told physician treatment bull jury unanimously found beyond reasonable doubt hendricks sexually violent predator trial subsequently determined matter state law pedophilia qualifies mental abnormality defined act thus ordered hendricks committed secretary custody hendricks appealed claiming among things application act violated federal constitution due process double jeopardy expost facto clauses kansas accepted hendricks due process claim hendricks declared order commit person involuntarily civil proceeding state required substantive due process prove clear convincing evidence person mentally ill danger others determined act definition mental abnormality satisfy perceived mental illness requirement civil commitment context result held act violates hendricks substantive due process rights majority address hendricks ex double jeopardy claims dissent however considered hendricks constitutional arguments rejected larson dissenting kansas argues act definition mental abnormality satisfies substantive due process requirements agree although freedom physical restraint always core liberty protected due process clause arbitrary governmental action foucha louisiana liberty interest absolute recognized individual constitutionally protected interest avoiding physical restraint may overridden even civil context liberty secured constitution every person within jurisdiction import absolute right person times circumstances wholly free restraint manifold restraints towhich every person necessarily subject common good basis organized society exist safety members jacobson massachusetts challenged act unambiguously requires finding dangerousness either one self others prerequisite involuntary confinement commitment proceedings initiated person convicted charged sexually violent offense suffers mental abnormality personality disorder makes person likely engage predatory acts sexual violence stat ann statute thus requires proof mere predisposition violence rather requires evidence past sexually violent behavior present mental condition creates likelihood conduct future person incapacitated recognized revious instances violent behavior important indicator future violent tendencies heller doe see also schall martin explaining legal point view nothing inherently unattainable prediction future criminal conduct finding dangerousness standing alone ordinarily sufficient ground upon justify indefinite involuntary commitment sustained civil commitment statutes coupled proof dangerousness proof additional factor mental illness mental abnormality see heller supra kentucky statute permitting commitment mentally retarded mentally ill dangerous individual allen illinois illinois statute permitting commitment mentally ill dangerous individual minnesota ex rel pearson probate ramsey minnesota statute permitting commitment dangerous individual psychopathic personality added statutory requirements serve limit involuntary civil confinement suffer volitional impairment rendering dangerous beyond control kansas act plainly kind civil commitment statutes requires finding future dangerousness links finding existence mental abnormality personality disorder makes difficult impossible person control dangerous behavior stat ann precommitment requirement mental abnormality personality disorder consistent requirements statutes upheld narrows class persons eligible confinement unable control dangerousness hendricks nonetheless argues earlier casesdictate finding mental illness prerequisite civil commitment citing foucha addington asserts mental abnormality equivalent mental illness term coined kansas legislature rather psychiatric community contrary hendricks assertion term mental illness devoid talismanic significance psychiatrists disagree widely frequently constitutes mental illness ake oklahoma used variety expressions describe mental condition properly subject civil confinement see addington using terms emotionally disturbed mentally ill jackson using terms incompetency insanity cf foucha concurring part concurring judgment acknowledging state authority commit person medical justification indeed never required state legislatures adopt particular nomenclature drafting civil commitment statutes rather traditionally left legislators task defining terms medical nature legal significance cf jones consequence years developed numerous specialized terms define mental health concepts often definitions fit precisely definitions employed medical community legal definitions insanity competency example vary substantially psychiatric counterparts see gerard usefulness medical model legal system rutgers rev discussing differing purposes legal system medical profession recognizing mental illness legal definitions however must take account issues individual responsibility competency need mirror advanced medical profession american psychiatric association diagnostic statistical manual mental disorders xxiii xxvii ed extent civil commitment statutes considered set forth criteria relating individual inability control dangerousness kansas act sets forth comparable criteria hendricks condition doubtless satisfies criteria mental health professionals evaluated hendricks diagnosed suffering pedophilia condition psychiatric profession classifies serious mental disorder see american psychiatric association treatments psychiatric disorders abel rouleau male sex offenders handbook outpatient treatment adults thase edelstein hersen eds hendricks even conceded becomes stressed control urge molest children app admitted lack volitional control coupled prediction future dangerousness adequately distinguishes hendricks dangerous persons perhaps properly dealt exclusively criminal proceedings hendricks diagnosis pedophile qualifies mental abnormality act thus plainly suffices due process purposes granted hendricks cross petition determine whether act violates constitution double jeopardy prohibition ban ex lawmaking thrust hendricks argument act establishes criminal proceedings hence confinement necessarily constitutes punishment contends newly enacted punishment predicated upon past conduct already convicted forced serve prison sentence constitution double jeopardy ex clauses violated unpersuaded hendricks argument kansas established criminal proceedings categorization particular proceeding civil criminal first question statutory construction allen must initially ascertain whether legislature meant statute establish civil proceedings ordinarily defer legislature stated intent kansas objective create civil proceeding evidenced placement sexually violent predator act within kansas probate code instead criminal code well description act creating civil commitment procedure stat article care treatment mentally ill persons emphasis added nothing face statute suggests legislature sought create anything civil commitment scheme designed protect public harm although recognize civil label alwaysdispositive allen supra reject legislature manifest intent party challenging statute provides clearest proof statutory scheme punitive either purpose effect negate state intention deem civil ward limited circumstances consider statute established criminal proceedings constitutional purposes hendricks however failed satisfy heavy burden threshold matter commitment act implicate either two primary objectives criminal punishment retribution deterrence act purpose retributive affix culpability prior criminal conduct instead conduct used solely evidentiary purposes either demonstrate mental abnormality exists support finding future dangerousness previously concluded illinois statute nonpunitive even though triggered commission sexual assault explaining evidence prior criminal conduct received punish past misdeeds primarily show accused mental condition predict future behavior allen supra addition kansas act make criminal conviction prerequisite commitment persons absolved criminal responsibility may nonetheless subject confinement act see stat ann absence necessary criminal responsibility suggests state seeking retribution past misdeed thus fact act may tied criminal activity insufficient render statut punitive ursery slip moreover unlike criminal statute finding scienter required commit individual isfound sexually violent predator instead commitment determination made based mental abnormality personality disorder rather one criminal intent existence scienter requirement customarily important element distinguishing criminal civil statutes see kennedy absence requirement evidence confinement statute intended retributive said legislature intended act function deterrent persons committed act definition suffering mental abnormality personality disorder prevents exercising adequate control behavior persons therefore unlikely deterred threat confinement conditions surrounding confinement suggest punitive purpose state part state represented individual confined act subject restrictive conditions placed state prisoners instead experiences essentially conditions involuntarily committed patient state mental institution app none parties argues people institutionalized kansas general civil commitment statute subject punitive conditions even though may involuntarily confined difficult conclude persons confined act punished although civil commitment scheme issue involve affirmative restraint mere fact person detained inexorably lead conclusion government imposed punishment salerno state may take measures restrict freedom dangerously mentally ill legitimate non punitive governmental objective historically regarded cf fact cited confinement mentally unstable individuals present danger public one classic example nonpunitive detention detention purpose protecting community harm necessarily constituted punishment involuntary civil commitments considered punishment never held hendricks focuses confinement potentially indefinite duration evidence state punitive intent focus however misplaced far punitive objective confinement duration instead linked stated purposes commitment namely hold person mental abnormality longer causes threat others cf jones noting approval impossible predict long take given individual recover insanity indeed whether ever recover congress chosen leave length commitment indeterminate subject periodic review patients suitability release time confined person adjudged safe large statutorily entitled immediate release stat ann furthermore commitment act potentially indefinite maximum amount time individual incapacitated pursuant single judicial proceeding one year kansas seeks continue detention beyond year must determine beyond reasonable doubt detainee satisfies standards required initial confinement ibid requirement demonstrates kansas intend individual committed pursuant act remain confined longer suffers mentalabnormality rendering unable control dangerousness hendricks next contends state use procedural safeguards traditionally found criminal trials makes proceedings criminal rather civil allen confronted similar argument petitioner place great reliance fact proceedings act accompanied procedural safeguards usually found criminal trials argue proceedings civil name rejected argument however explaining state decision provide safeguards applicable criminal trials turn proceedings criminal prosecutions numerous procedural evidentiary protections afforded demonstrate kansas legislature taken great care confine narrow class particularly dangerous individuals meeting strictest procedural standards kansas chose afford procedural protections transform civil commitment proceeding criminal prosecution finally hendricks argues act necessarily punitive fails offer legitimate treatment without treatment hendricks asserts confinement act amounts little disguised punishment hendricks argument assumes treatment condition available state failed refused provide kansas however apparently rejected assumption explaining clear overriding concern legislature continue segregation sexually violent offenders public treatment goal reintegrating society incidental best record reflects treatment sexually violent predators nonexistent legislature concedes sexually violent predators amenable treatment existing kansas involuntary commitment statute nothing treat statute mental illness light provisions act treatment appear somewhat disingenuous accepting kansas apparent determination treatment possible category individuals obligate us adopt legal conclusions already observed appropriate circumstances accompanied proper procedures incapacitation may legitimate end civil law see allen supra salerno accordingly kansas determination act overriding concern continued segregation sexually violent offenders consistent conclusion act establishes civil proceedings especially concern coupled state ancillary goal providing treatment offenders possible upheld state civil commitment statutes aim incapacitate treat see allen supra never held constitution prevents state civilly detaining treatment available nevertheless pose danger others state hardly seen furthering punitive purpose involuntarily confining persons afflicted untreatable highly contagious disease accord compagnie francaise de navigation vapeur louisiana bd health permitting involuntary quarantine persons suffering communicable diseases similarly little value require treatment precondition civil confinement dangerously insane acceptable treatment existed conclude otherwise obligate state release certain confined individuals mentally ill dangerous simply successfully treated afflictions cf greenwood fact present may little likelihood recovery defeat federal power make initial commitment petitioner donaldson burger concurring remains stubborn fact many forms mental illness understood untreatable sense effective therapy yet discovered rates cure generally low alternatively kansas opinion read conclude hendricks condition treatable treatment state overriding concern treatment provided least time hendricks committed see also ibid clear primary objective act continue incarceration provide treatment even accept determination provision treatment kansas legislature overriding primary purpose passing act rule possibility ancillary purpose act provide treatment require us conclude act punitive indeed critical language act demonstrates secretary social rehabilitation services whose custody sexually violent predators committed obligation provide treatment individuals likehendricks jury determines person sexually violent predator person shall committed custody secretary social rehabilitation services control care treatment time person mental abnormality personality disorder changed person safe large emphasis added act sections echo obligation provide treatment committed persons see establishing civil commitment procedure long term care treatment sexually violent predator requiring confinement conform constitutional requirements care treatment thus allen state statutory obligation provide care treatment persons adjudged sexually dangerous designed effect recovery quoting rev ch may therefore conclude state provided treatment commits although treatment program initially offered hendricks may seemed somewhat meager must remembered first person committed act state treatment procedures place thus surprising significant however hendricks placed supervision kansas department health social rehabilitative services housed unit segregated general prison population operated employees department corrections trained individuals kansas declared bsolutely persons committed act receiving neighborhood hours treatment per week tr oral arg state disavowed punitive intent limited confinement small segment particularly dangerous individuals provided strict procedural safeguards directed confined persons segregated general prison population afforded status others civilly committed recommended treatment possible permitted immediate release upon showing individual longer dangerous mentally impaired say acted punitive intent therefore hold act establish criminal proceedings involuntary confinement pursuant act punitive conclusion act nonpunitive thus removes essential prerequisite hendricks double jeopardy ex claims double jeopardy clause provides shall person subject offence twice put jeopardy life limb although generally understood preclude second prosecution offense also interpreted prohibition prevent state punishing twice attempting second time punish criminally offense witte emphasis internal quotation marks omitted hendricks argues applied act violates double jeopardy principles confinement act imposed conviction term incarceration amounted second prosecution second punishment offense disagree determined kansas act civil nature initiation commitment proceedings constitute second prosecution cf jones permitting involuntary civil commitment verdict guilty reason insanity moreover commitment act tantamount punishment hendricks involuntary detention violate double jeopardy clause even though confinement may follow prison term indeed baxstrom herold expressly recognized civil commitment follow expiration prison term without offending double jeopardy principles reasoned conceivable basis distinguishing commitment person nearing end penal term civil commitments individual otherwise meets requirements involuntary civil commitment state obligation release individual simply detention follow period incarceration hendricks also argues even act survives multiple punishments test nevertheless fails elements test blockburger blockburger act transaction constitutes violation two distinct statutory provisions test applied determine whether two offenses one whether provision requires proof fact blockburger test however simply apply outside successive prosecution context proceeding act define offense elements compared elements offense person may previously convicted act make commission specified offense basis invoking commitment proceedings instead uses prior conviction previously charged conduct evidentiary purposes determine whether person suffers mental abnormality personality disorder also poses threat public accordingly unpersuaded hendricks novel application blockburger test conclude act violate double jeopardy clause hendricks ex claim similarly flawed ex clause forbids application new punitive measure crime already consummated interpreted pertain exclusively penal statutes california dept corrections morales quoting lindsey washington previously determined act impose punishment thus application raise ex concerns moreover act clearly retroactive effect rather act permits involuntary confinement based upon determination personcurrently suffers mental abnormality personality disorder likely pose future danger public extent past behavior taken account used noted solely evidentiary purposes act criminalize conduct legal enactment deprive hendricks defense available time crimes act violate ex clause hold kansas sexually violent predator act comports due process requirements neither runs afoul double jeopardy principles constitutes exercise impermissible ex lawmaking accordingly judgment kansas reversed ordered nos kansas petitioner leroy hendricks leroy hendricks petitioner writs certiorari kansas june justice kennedy concurring join opinion full add additional comments though issues argued us case matured turns whether kansas statute ex law law enacted commission offense punishes offense extending term confinement textbook example ex law object purpose kansas law provide treatment treatment provisions adopted sham mere pretext indication forbidden purpose punish opinion gives full complete explanation ex challenge based contention succeed case us however concerns hendricks alone brief comment caution dangers inherent civil confinement law used conjunction criminal process whether law given retroactive application seems dissent validate kansas statute persons committed crime enactment might even validate statute hendricks assuming reasonable level treatment members seem agree power state confine persons reason mental disease mental abnormality constitute real continuing serious danger society well established addington texas confinement individuals permitted even pursuant statute enacted crime committed offender begun serving completed serving penal sentence provided object purpose punish see baxstrom herold kansas law attendant protections including yearly review review time instance person confined within pattern tradition civil confinement case mental abnormality pedophilia least described american psychiatric association diagnostic statistical manual mental disorders ed notwithstanding civil attributes practical effect kansas law may impose confinement life stage medical knowledge although future treatments predicted psychiatrists professionals engaged treating pedophilia may reluctant find measurable success treatment even long period may unable predict serious danger come release detainee common response may life term exactly sentence anyway words kansas task force member testimony jim blaufuss app point however long hendricks others like serve criminal sentence criminalrecord life term may well sentence appropriate protect society vindicate wrong concern instead whether criminal system civil system make decision first place civil system used simply impose punishment state makes improvident plea bargain criminal side performing proper function concerns persist whether civil confinement statute put books offense bear mind incapacitation goal common criminal civil systems confinement retribution general deterrence reserved criminal system alone record us kansas civil statute conforms precedents however civil confinement become mechanism retribution general deterrence shown mental abnormality imprecise category offer solid basis concluding civil detention justified precedents suffice validate nos kansas petitioner leroy hendricks leroy hendricks petitioner writs certiorari kansas june justice breyer justices stevens souter join justice ginsburg joins parts ii iii dissenting agree majority kansas act definition mental abnormality satisfies substantive requirements due process clause ante kansas however concedes hendricks condition treatable yet act provide hendricks others like treatment release date prison inadequate treatment thereafter certain special features act convince simply effort commit hendricks civilly rather effort inflict punishment upon ex clause therefore prohibits act application hendricks committed crimes prior enactment begin area agreement held civil commitment mentally ill person automatically violate due process clause provided commitment takes place pursuant proper procedures evidentiary standards see foucha louisiana addington texas kansas however held due process clause forbids application act hendricks substantive reasons irrespective procedures evidentiary standards used reasoned kansas satisfied mentally ill requirement due process clause hendricks mentally hendricks moreover kansas satisfied believed additional substantive due process requirement namely provision treatment shall consider matters briefly view due process clause permits kansas classify hendricks mentally ill dangerous person civil commitment purposes allen illinois agree majority constitution gives degree leeway making kind determination ante foucha supra concurring part concurring judgment jones subscribe reasoning shall set forth three sets circumstances taken together convince kansas acted within limits due process clause substantively sets first psychiatric profession classifies kind problem hendricks suffers serious mental disorder american psychiatric diagnostic statistical manual mentaldisorders ed describing range paraphilias discussing stress aggravates pedophilic behavior abel rouleau male sex offenders handbook outpatient treatment adults thase edelstein hersen eds concede professionals also debate whether disorder called mental illness see slovenko psychiatry criminal culpability citing testimony paraphilias mental illnesses schopp sturgis sexual predators legal mental illness civil commitment behav sci law compare brief american psychiatric association amicus curiae mental illness requirement satisfied brief menninger clinic et al amici curiae requirement satisfied presence vigor debate important constitution permits state follow one reasonable professional view rejecting another see addington texas psychiatric debate therefore helps inform law setting bounds reasonable decide must write laws within bounds see jones supra second hendricks abnormality consist simply long course antisocial behavior rather includes specific serious highly unusual inability control actions example hendricks testified gets stressed control urge molest children see ante law traditionally considered kind abnormality akin insanity purposes confinement see minnesota ex rel pearson probate ramsey upholding due process challenge civil confinement dangerous person danger flowed utter lack power control sexual impulses quoting state exrel pearson probate ramsey cty laws ch permitting confinement furiously mad oakes law mass shaw deutsch mentally ill america tracing history commitment furiously mad people centuries dershowitz origins preventative confinement anglo american law part ii american experience cin rev indeed notion irresistible impulse often helped shape criminal law insanity defense inform related recommendations legal experts seek translate insights mental health professionals workable legal rules see also american law institute model penal code insanity defense part rests inability conform conduct requirements law goldstein insanity defense describing irresistible impulse test third hendricks mental abnormality also makes dangerous hendricks convicted sexually violent offense jury found suffers mental abnormality makes likely engage similar acts sexual violence future stat ann evidence trial favored state befort example explained hendricks likely commit acts sexual violence released see app hendricks testimony happens gets stressed confirmed befort diagnosis many mental health professionals consider pedophilia serious mental disorder hendricks suffers classic case irresistible impulse namely afflicted pedophilia control urge molest children pedophilia presents serious danger children believethat kansas classify hendricks mentally ill dangerous used terms foucha kansas contrary conclusion rested primarily upon view hendricks qualify civil commitment kansas state civil commitment statute issue us however one constitutional interpretation constitution require kansas write civil commitment rules single statute forbid write two separate statutes covering somewhat different classes committable individuals moreover hendricks apparently falls outside scope kansas general civil commitment statute statute permits confinement lac capacity make informed decision concerning treatment stat ann statute tell us imposes requirement capacity make informed decision treatment always obviously incompatible severe mental illness neither hendricks amici point uniform body professional opinion says much found see american psychiatric guidelines legislation psychiatric hospitalization adults psychiatry stromberg stone model state law civil commitment mentally ill harv legis deland borenstein medicine ii rivers practice psychiatry consequently boundaries federal constitution kansas general civil commitment statute congruent kansas also held due process clause requires state provide treatment civilly confines mentally ill dangerous found kansas provide hendricks significant treatment concluded hendricks confinement violated due process clause reason well anyone argue kansas somehow violated due process clause treatment concerns provided hendricks treatment potentially available see argument succeed rather basic substantive due process treatment question whether clause requires kansas provide treatment concedes potentially available person concedes treatable question heart discussion whether hendricks confinement violates constitution ex clause see infra reason shall consider substantive due processtreatment question separately instead shall simply turn ex clause discussion justice kennedy points ante matters discussed may later prove relevant substantive due process analysis kansas act violates federal constitution prohibition ex law inflicts upon hendricks greater punishment law annexed crime committed crimes calder bull dall opinion chase art majority agrees clause forbids application new punitive measure crime already consummated california dept corrections morales slip citation omitted emphasis added ante finds act punitive respect basic question disagree majority certain resemblances act civil commitment traditional criminal punishments obvious like criminal imprisonment act civil commitment amounts secure confinement stat ann incarceration one gault see testimony terry davis srs director quality assurance app confinement takes place psychiatric wing prison hospital act confines ordinary prisoners treated alike cf browning ferris industries kelco disposal concurring part dissenting part addition basic objective act incapacitation blackstone said describing objective criminal law depriv party injuring power future mischief blackstone incapacitation one important purpose criminal punishment see also foucha kennedy dissenting incapacitation protection society unusual ground incarceration brown punishment purposes retributive rehabilitative deterrent preventative one reasons society imprisons convicted crimes keep inflicting future harm make imprisonment less punishment lafave scott substantive criminal law sentencing guidelines guidelines manual ch pt moreover act like criminal punishment imposes confinement sanction upon individual previously committed criminal offense stat ann cf department revenue mont kurth ranch fact tax marijuana conditioned commission crime significant penal prohibitory intent citation omitted lipke lederer act imposes confinement use persons county prosecutors procedural guarantees trial jury assistance counsel psychiatric evaluations standards beyond reasonable doubt traditionally associated criminal law stat ann obvious resemblances however legally sufficient transform act calls civil commitment criminal punishment civil commitment dangerous mentally ill individuals nature involves confinement incapacitation yet civil commitment constitutional perspective nonetheless remains civil allen illinois fact criminalbehavior triggers act make critical difference act insistence upon prior crime screening whose past behavior concretely demonstrate existence mental problem potential future danger may serve important noncriminal evidentiary purpose neither presence criminal law type procedures determinative procedures serve important purpose context one might consider noncriminal namely helping prevent judgmental mistakes wrongly deprive person important liberty obvious similarities prove kansas civil commitment statute criminal neither word civil written statute prove contrary said clearest proof establish law legislature called civil reality punitive measure ward also reiterated civil label always dispositive allen illinois supra said close cases label paramount importance kurth ranch supra citation omitted looked behind civil label fairly often halper circumstance important features act pointing opposite directions place particular importance upon features likely distinguish basically punitive basically nonpunitive purpose ursery slip asking whether statutory scheme punitive either purpose effect negate legislature intention establish civil remedial mechanism citations omitted note earlier civil commitment case allen illinois looked primarily law concern treatment asan important distinguishing feature believe allen means particular law lack concern treatment enough make incapacitative law punitive reasons point state believes treatment exist couples admission legislatively required delay treatment person end jail term incapacitation therefore necessary legislative scheme begins look punitive allen considered whether fifth amendment purposes proceedings illinois statute civil criminal illinois statute rather like kansas statute authorized confinement persons sexually dangerous committed least one prior sexual assault suffered mental disorder allen looking behind statute civil commitment label found statute civil important part state provided treatment commits also referring facts state disavowed interest punishment established system committed persons may released briefest time confinement reaching conclusion noted state found proceedings essentially civil statute aim provide treatment punishment quoting people allen observed state statutory obligation provide care treatment designed effect recovery facility set aside provide psychiatric care quoting rev ch referred state purpose one treating rather punishing sexually dangerous persons see also ibid petitioner shown example confinement imposes regimen essentially identical imposed upon felons need psychiatric care might well different case allen focus upon treatment kind touchstone helping distinguish civil punitive purposes surprising one expect nonpunitive statutory scheme confine simply order protect also order cure say one expect nonpunitively motivated legislature confines dangerous mental abnormality seek help individual overcome abnormality least insofar professional treatment abnormality exists potentially helpful kansas supported groups mental health professionals argues case see supra conversely statutory scheme provides confinement reasonably fit practically available medically oriented treatment objective likely reflects primarily punitive legislative purpose several important treatment related factors factors kind led five member allen majority conclude illinois legislature purpose primarily civil punitive case suggest precisely opposite first state unlike state allen held treatment significant objective act kansas wrote act purpose segregation sexually violent offenders treatment matter incidental best way contrast allen illinois written treatment punishment aim statute allen supra quoting people allen generally given considerable weight findings state lower federal courts regarding theintent purpose underlying state officials actions see term limits thornton slip ordinarily must accept state view purpose law romer evans slip hernandez new york plurality concurring edwards aguillard see department revenue mont kurth ranch stone graham per curiam consolidated edison public serv although level deference given findings varies circumstances crawford board ed los angeles always conclusive state construction one statutes see paul example allen dissenters well majority considered state characterization state law purpose important factor determining constitutionality statute allen supra stevens dissenting describing state final authority purpose statute record provides support kansas conclusion found time hendricks commitment state funded treatment entered treatment contracts little qualified treatment staff see hendricks testimony charles befort app acknowledging specialized training testimony john house srs attorney contract signed bidders testimony john house srs attorney one hired operate svp program serve clinical director psychiatrist psychologist indeed follow majority invitation lookbeyond record case invitation disagree see infra reveal hendricks according commitment program director receiving essentially treatment charles befort state habeas corpus proceeding app see also app treatment prescribed statute still available needed treatment delivered yet hendricks wasted ten months terms treatment effects befort admitting qualified svp program director therefore surprising act official supporters seen opportunity permanently confine dangerous sex offenders statement attorney general robert stephan statement special assistant attorney general carla stovall others thought effective treatment exist statement jim blaufuss effective treatment sex offenders bill may mean life sentence felon considered risk women children view way state kansas supported groups informed mental health professionals strongly denies see supra kansas acknowledged existence provisions act treatment although called somewhat disingenuous cf stat ann legislative findings prognosis rehabilita tion prison setting poor treatment needs long term commitment procedure long term care treatment necessary commitment shall conform constitutional requirements care treatment deny kansas later increase amountof treatment provided kansas use act language history initial implementation help characterize act primary purposes second kansas statute insofar applies previously convicted offenders hendricks commits confines treats offenders served virtually entire criminal sentence time related circumstance seems deliberate act explicitly defers diagnosis evaluation commitment proceedings weeks prior anticipated release previously convicted offender prison stat ann one might ask act commit require treatment sex offenders sooner say soon begin serve sentences act simply seeks confinement course need begin civil commitment proceedings sooner act begin proceedings offender prison term ends threatening release confinement imprisonment assures difficult see rational legislators seek treatment write act way providing treatment years criminal act indicated necessity see wettstein psychiatric perspective washington sexually violent predators statute puget sound rev stating treatment delay leads loss memory makes difficult offender accept responsibility time prison leads attitude hardening engender distorted view precipitating offense particularly difficult see legislators specifically wrote statute finding prognosis rehabilitating prison setting poor leave offender setting months years beginning treatment say timing provisions thestatute confirm kansas view treatment particularly important legislative objective recognize one possible counterargument state wanting punish hendricks say deterrence purposes also treat might argue permitted postpone treatment punishment order make certain punishment fact occurs reasoning place much treatment kansas offered called ward milieu group therapy given time place hendricks serves punishment see testimony leroy hendricks stating washington kansas provided group therapy hendricks taken refused treatment various points testimony terry davis srs director quality assurance pointing treatment act takes place surroundings similar prisoners receive treatment testimony john house srs attorney see also task force community protection final report booth gardner governor state washington ii findings task force developed washington state act served model kansas act stating ex offenders treated incarceration evidence adduced state habeas proceeding assume properly see infra supports conclusion well see testimony befort state habeas proceeding app describing treatment ward milieu group therapy stating kansas offers similar treatment voluntary basis prisoners hence assuming arguendo otherwise permissible kansas need postpone treatment order make certain sexoffenders serve full terms imprisonment make certain receive entire punishment kansas criminal law provides contrary statement act act aims respond special long term treatment needs suggests treatment begin imprisonment also suggests long term treatment needs rather punishment kansas primary aim state require treatment begin soon conviction years later see also stat tit providing treatment sexual psychopaths first punishment afterwards third statute least time kansas applied hendricks require committing authority consider possibility using less restrictive alternatives postrelease supervision halfway houses methods amici supporting kansas mentioned brief menninger foundation et al amici curiae brief association treatment sexual abusers amicus curiae laws many require consideration see appendix infra said failure consider use alternative less harsh methods achieve nonpunitive objective help show legislature purpose punish bell wolfish one draw similar conclusion legislation seeks help individual offender well protect public avoid significantly greater restriction individual liberty public safety requires see keilitz conn gianpetro least restrictive treatment involuntary patients translating concepts practice louis describing least restrictive alternativ provisions ordinary civil commitment laws almost lyon levine zusman patients bill rights asurvey state statutes mental disability legislation seeks almost exclusively incapacitate individual confinement however necessarily concern potentially less restrictive forms incapacitation reemphasize case state claims treatment potentially available rather kansas supporting amici argue pedophilia treatable see supra fourth laws confirm comparison kansas civil commitment objectives require statutory features indicate punitive purpose found laws seek protect public mentally abnormal sexually dangerous individuals civil commitment mandatory treatment programs ten statutes unlike kansas statute begin treatment offender soon apprehended charged serious sex offense seven like kansas delay civil commitment treatment offender served criminal sentence figure includes acts minnesota new jersey generally delay treatment seven however six unlike kansas require consideration less restrictive alternatives see rev stat ann supp cal welf inst code ann west supp stat stat ann west stat supp rev code ann supp one state kansas namely iowa delays civil commitment consequent treatment explicitly consider less restrictive alternatives law state applies prospectively thereby avoiding ex problems see iowa code ann supp iowa svp act applies persons convicted sexuallyviolent offense july see also appendix infra thus practical experience revealed statutes confirms kansas finding timing civil commitment proceeding failure consider less restrictive alternatives suggest namely ex clause purposes purpose kansas act applied previously convicted offenders punitive rather purely civil purpose kansas points several cases support contrary conclusion points allen seen case concluded illinois civil commitment proceedings criminal explained detail however statute differs allen allen reasoning leads different conclusion litigation see supra kansas also points addington texas held constitution require application criminal law beyond reasonable doubt standard civil commitment proceeding criminal law guarantees reasonable doubt apply addington guarantees prohibition ex laws apply answer question course lies particular statute issue addington texas statute observed exercis state power punitive sense ibid statute add civil commitment confinement imprisonment rather civil commitment substitute criminal punishment see tex rev civ stat ann petition must state proposed patient charged crime charged transferred civil commitment proceedings relying texas interpretation wrote state texas confines purpose providing care designed treat individual addington supra citing state turner cf specht patterson separate postconviction sexual psychopath proceeding held conviction serious sex crime imposes criminal punishment even though designed much retribution keep individuals inflicting future harm nothing say change reach holding addington way state free commit dangerous mentally ill order treat decision preclude state deciding certain subset people mentally ill dangerous untreatable confinement subset therefore necessary assuming procedural safeguards addington place state decides offenders treated confines offender provide treatment refuses provide refusal treat person fully incapacitated begins look punitive majority suggests case say namely case mentally ill person untreatable ante quotes long excerpt kansas opinion support however find hendricks untreatable found untreated quite different matter kansas thought hendricks others like untreatable written words follow excerpt adopting reference words another opinion statute forecloses possibility offenders evaluated treated punished setting aside question whether prison term exacerbates minimizes mental condition sex offender plainly delaysthe treatment must constitutionally accompany commitment pursuant statute failure statute provide examination treatment prior completion punishment phase strongly suggests treatment secondary rather primary concern quoting young weston supp wd majority suggests alternative recent evidence shows kansas providing treatment ante evidence comes two sources first statement kansas attorney general oral argument committed act receiving treatment ante second kansas trial judge statement state habeas proceeding nearly one year hendricks committed kansas providing treatment ante see either statements used justify validity act application hendricks time filed suit reviewing kansas determination hendricks case neither majority lengthy dissent referred two facts majority seizes upon good reason denied motion take judicial notice state habeas proceeding see order kansas march proceeding thus part record properly considered kansas obviously chance consider kansas new claim made oral argument simply evidence therecord comes even close resembling assertion kansas made oral argument record parties view must control decision see russell southard adickes kress hopt utah witters washington dept servs blind new inclusion cases stern gressman shapiro geller practice ed fed rule evid prohibition facts found outside record designed ensure reliability evidence purposes argument dissent however material majority wishes consider read entirety show kansas providing treatment hendricks best testimony state hearing contained general vague references treatment provided contains statement hendricks receiving treatment provides majority support respect key fact indeed demonstrates contrary conclusion example program director befort testified tell hendricks next annual review october hendricks opportunity meaningful treatment app also stated svps receiving essentially treatment program adequate staffing befort last words made clear hendricks wasted ten months terms treatment effects far treatment goes oday still available assertion made kansas attorney general oral argument help majority never stated hendricks opposedto svps receiving treatment find support statement record found evidence record support conclusion kansas fact providing treatment parties agree provide thus even kansas considered majority new evidence likely changed characterization act treatment provisions somewhat disingenuous regardless kansas characterize act treatment provisions find treatment best incidental objective thus circumstances different allen illinois explicitly found statute aim provide treatment punishment see supra evidence record contradicts finding kansas thus allen approach reliance state followed mean act applied leroy hendricks opposed others may received treatment sentenced effective date act punitive finally kansas points salerno case held preventive detention dangerous accused person pending trial constitutionally permissible salerno however involved brief detention person finding probable cause committed crime justify imprisonment pending speedy judicial determination guilt innocence foucha emphasized fact confinement issue salerno strictly limited duration described pretrial detention arrestees one carefully limited exceptions permitted due process clause held salerno notauthorize indefinite detention grounds dangerousness insanity acquittees mentally ill prove dangerous others whatever salerno due process implications may focus upon control question issue question punishment purposes ex clause one case warrants mention kennedy listed seven factors helped determine whether particular statute primarily punitive purposes applying fifth sixth amendments factors include whether sanction involves affirmative restraint history regarded whether applies behavior already crime need finding scienter relationship traditional aim punishment presence nonpunitive alternative purpose whether excessive relation purpose said seven factors neither exhaustive dispositive nonetheless helpful ward paraphrasing believe act us involves affirmative restraint historically regarded punishment imposed upon behavior already crime finding scienter restraint namely confinement serves traditional aim punishment primarily serve alternative purpose treatment excessive relation alternative purpose assigned say factors mentioned martinez mendoza balance argues favor constitutional characterization punishment say found single formula identifying legislative changes sufficient effect substantive crimes punishments fall within constitutional prohibition morales slip see alsohalper kennedy concurring previously done rather pointed features act context litigation lead conclude light precedent added confinement act imposes upon hendricks basically punitive analysis rooted facts surrounding kansas failure treat hendricks answer question whether kansas act stands light current implementation punitive towards people attempt find confinement act imposes upon hendricks punishment find violation ex clause kansas deny act changed legal consequences attached hendricks earlier crimes way significantly disadvantage offender weaver graham see brief respondent state kansas find violation clause however hold clause prevents kansas enacting dangerous sexual offender statutes statute operates prospectively example offend ex clause weaver supra neither offend ex clause state sentence offenders fully authorized sentence seek consecutive rather concurrent sentences invoke recidivism statutes lengthen imprisonment moreover statute operates retroactively like kansas statute nonetheless offend clause confinement imposes punishment say legislature simply add later criminal punishment earlier one ibid statutory provisions us amount punishment primarily said legislature tailor statute fit nonpunitive civil aim treatment concedes exists hendricks case clause circumstances stand obstacle achieving important protections public safety rather provides assurance significant restriction individual basic freedoms issue state cut corners rather legislature must hew constitution liberty protecting line see federalist rossiter ed hamilton therefore affirm judgment appendix selected sexual offense commitment statutes kansas state answers yes three categories state delays treatment fails consider less restrictive alternatives applies crimes rev stat ann et seq supp yesno cal welf inst code ann et seq west supp yesnoyescolo rev stat et seq supp noyessome timesconn stat et seq supp comp ch et seq nonoiowa code ann ch supp yesyesnokan stat ann et seq yesyesyesmass laws ch supp stat ch supp sometimesnoyesneb rev stat et seq supp nonogenerally notn stat ann et seq west sometimesno stat ann et seq nono stat et seq noyesgenerally nottenn code ann et seq supp noyes utah code ann et seq noyesgenerally notwash rev code ann et seq supp yesnoyeswis stat et seq yesnoyes designation statute specify footnotes together hendricks kansas also certiorari subsequent hendricks commitment kansas legislature amended act ways relevant case see stat ann supp changing notification period days supp requiring state attorney general initiate commitment proceedings addition hendricks testimony jury heard hendricks stepdaughter stepson recounted events surrounding repeated sexual abuse hendricks hands app one girls hendricks exposed testified well state also presented testimony lester lee licensed clinical social worker specialized treating male sexual offenders charles befort chief psychologist larned state hospital lee testified hendricks diagnosis personality trait disturbance passive aggressive personality pedophilia befort testified hendricks suffered pedophilia likely commit sexual offenses children future confined opined pedophilia qualifies mental abnormality within act definition term finally hendricks offered testimony william logan forensic psychiatrist stated possible predict degree accuracy future dangerousness sex offender recognize course psychiatric professionals complete harmony casting pedophilia paraphilias general mental illnesses compare brief american psychiatric association amicus curiae brief menninger foundation et al amici curiae disagreements however tie state hands setting bounds civil commitment laws fact precisely disagreement exists legislatures afforded widest latitude drafting statutes cf jones explained regarding congressional enactments legislature undertakes act areas fraught medical scientific uncertainties legislative options must especially broad courts cautious rewrite legislation internal quotation marks citation omitted explained enjoy wide latitude developing treatment regimens youngberg romeo observing state considerable discretion determining nature scope responsibilities allen example concluded state serves purpose treating rather thanpunishing sexually dangerous person committing institution expressly designed provide psychiatric care treatment emphasis original omitted measure kansas doubtless satisfied obligation provide available treatment indeed informed august hearing hendricks petition state habeas corpus relief trial admittedly conflicting testimony ruled allegation treatment provided petitioners persons committed program designated sexual predator treatment program true find receiving treatment app thus extent treatment available hendricks condition state appears providing furnishing treatment kansas legislature indicated treatment possible least ancillary goal act easily satisfies test determining act punitive